Case C-352/22: The CJEU’s Ruling on Refugee Protection and Extradition

1. Introduction

The main question in this article is whether a Member State (MS) is limited by the refugee status granted by another MS when assessing an extradition request. To answer this, we examine Case C-352/22 of the CJEU, considering Directives 2011/95/EU and 2013/32/EU, as well as fundamental principles of the European Union, such as the principle of loyal cooperation and the principle of non-refoulement.

This case, resulting from a preliminary ruling request by the Higher Regional Court of Hamm, is important for understanding the European asylum system.

2. Legal Framework

2.1 International Law

First, we must understand who is considered a refugee. For this, we refer to the Geneva Convention Relating to the Status of Refugees, signed in Geneva on 28 July 1951.

Article 1 defines a refugee as someone who fears persecution based on race, religion, nationality, social group, or political opinions, is outside their country of origin, and is unable or unwilling, due to that fear, to seek protection from their country of origin. This also applies to stateless persons who are outside their normal residence and cannot or do not want to return due to a fear of persecution.

Article 33 refers to the principle of non-refoulement, meaning that contracting states cannot expel or return a refugee to a country where their life or freedom would be at risk due to personal characteristics.

2.2 German Law

The Law on International Judicial Cooperation in Criminal Matters (1982) states that extradition must be refused when there are serious reasons to believe that the person will be prosecuted or punished based on their individual characteristics. The Asylum Law (1992) prevents the binding of refugee status to extradition proceedings.

2.3 European Law

Directive 2011/95 establishes the conditions under which an individual is considered a refugee or a beneficiary of subsidiary protection and outlines the rights of these beneficiaries. Article 21 of this Directive is particularly important as it expresses the principle of non-refoulement.

Directive 2013/32 concerns common procedures for granting and withdrawing international protection status. Within this Directive, Article 9 is crucial:

• Nº1 establishes the right of an applicant for international protection to remain in the territory of the MS where they applied while their request is being processed;

• Nº2 outlines exceptions to this right, including extradition cases.

• Nº3 states that extradition must not, under any circumstances, violate the principle of non-refoulement.

As we will see later, the preliminary question will focus on Article 21 of Directive 2011/95 and Article 9 of Directive 2013/32. However, as the CJEU states, to provide a useful response to the referring court, it may also refer to other provisions not explicitly mentioned in the preliminary question. In this regard, the CJEU references two provisions of the Charter of Fundamental Rights of the European Union:

1. Article 18, which recognizes the right to asylum;

2. Article 19, which absolutely prohibits the removal of a person to a state where they face a serious risk of being subjected to inhuman or degrading treatment.

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3. Factual Background

A., a Kurdish-Turkish citizen, was granted refugee status in Italy in 2010 due to persecution risks as a PKK member and later moved to Germany in July 2019.

In 2020, a Turkish court issued an arrest warrant for an alleged homicide committed in 2009. A. was then arrested on 18/11/2020 and placed in pre-trial detention, followed by detention for extradition purposes until 14/04/2022.

4. Procedural Background

The Higher Regional Court of Hamm, acting as the referring court, declared on 02/11/2021 that A.’s extradition was admissible. In other words, the court concluded that the refugee status granted by another MS (Italy) does not bind the extradition process but may serve as an indication of a possible risk the individual could face in their country of origin.

Following an appeal by A., the German Federal Constitutional Court annulled this decision, invoking Article 267(3) of the Treaty on the Functioning of the EU. It determined that, since this was an unprecedented and necessary question for resolving the case, a preliminary ruling should be referred to the CJEU.

Thus, the following preliminary question was raised: should Articles 9(2) and (3) of Directive 2013/32 and Article 21(1) of Directive 2011/95 be interpreted as meaning that refugee status granted by one MS binds another MS in an extradition proceeding?

5. Opinion of the Advocate General

Advocate General (AG) Jean Richard de la Tour highlighted two doctrinal perspectives. The first supports the binding effect of refugee status to prevent extradition from circumventing revocation rules. The second argues that asylum and extradition proceedings are independent, allowing for a later reassessment of the reasons for granting refugee status.

The AG followed the second perspective, stating that EU legislation does not provide for the automatic recognition of refugee status among MSs.

6. CJEU Decision

The Court first established that Article 9 of Directive 2013/32 does not apply to this case, as it pertains to situations where refugee status is still pending, whereas in this case, the extradition process occurs after refugee status was already granted by another MS.

The CJEU concluded, based on Article 21 of Directive 2011/95 and Articles 18 and 19 of the Charter of Fundamental Rights of the EU, that refugee status granted by one MS prevents extradition unless it is revoked by the authority that granted it.

Three cumulative conditions must be met for extradition to be authorized:

1. Revocation of refugee status by the granting authority;

2. Confirmation of the revocation by the requested MS;

3. Absence of a risk of inhuman treatment in the requesting country.

   
   

The Court reaffirmed the protection of fundamental rights, prohibiting A.'s extradition if there was a risk of political persecution.

7. Conclusion

The CJEU ruled that, under Article 21 of Directive 2011/95 and Articles 18 and 19 of the Charter of Fundamental Rights of the EU, if a third-country national has been granted refugee status in one MS, another MS receiving an extradition request must first consult the authorities of the state that granted that status. Therefore, extradition can only proceed if the original authority revokes the status.

I conclude that the CJEU’s position seems to be the most aligned with EU law for the following reasons:

1. If we did not recognize the binding effect, we would create a loophole allowing extradition to bypass the revocation rules established in the Directives, as noted by the doctrine supporting the binding effect;

2. Furthermore, I do not believe that a mere exchange of information between the authorities granting refugee status and those handling extradition, as suggested by the AG, sufficiently upholds the principle of loyal cooperation in this case. This is because extradition, even after such an exchange, would effectively “revoke” a status granted by an authority better positioned to assess its revocation;

3. Although asylum and extradition proceedings have distinct dynamics, they can, in my view, be interdependent. Refugee status can influence an extradition process, and the existence of an extradition process may also weigh on the decision to revoke or uphold refugee status.

In my view, this decision has a significant impact on the development of what we may call an emerging administrative law of the EU, as well as on the understanding of the EU’s asylum and extradition systems.

References

Legislation

1. Treaty on European Union (TEU);

2. Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013;

3. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011;

4. Geneva Convention Relating to the Status of Refugees.

Case Law

1. Judgment of the Court (Second Chamber) of 20 March 1986, Procureur de la République v. Gérard Tissier;

2. Judgment of the Court of Justice (Grand Chamber) of 18 June 2024;

3. CJEU Judgment in Case C-352/22;

4. Opinion of Advocate General Richard de la Tour, delivered on 19/10/2023.